Hastibeer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 361

Hastibeer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 361 (26 February 2020)

Division:GENERAL DIVISION

File Number(s):      2019/8142

Re:Zain Hastibeer

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr N A Manetta, Senior Member

Date:26 February 2020

Place:Sydney

The Tribunal sets aside the decision under review and substitutes a decision that the mandatory cancellation of the Applicant’s visa be revoked.

......................[sgnd]...................................

Dr N A Manetta, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – where applicant convicted of robbery with weapon on two occasions - where applicant a user of ice at time of offending– likelihood of recurrence of offending – other considerations – applicant a citizen of South Africa – substantial hardship in South Africa - decision under review set aside and in substitution decided that visa cancellation be revoked 

LEGISLATION

Migration Act 1958

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185
Ung v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2020] AAT 112

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018

REASONS FOR DECISION

Dr N A Manetta, Senior Member

26 February 2020

1. This is an application by Mr Zain Hastibeer seeking a review of a decision of the Respondent’s delegate notified to him on 4 December 2019.  The delegate decided not to revoke the cancellation of Mr Hastibeer’s visa,[1] which had been earlier effected mandatorily under section 501(3A) of the Migration Act, 1958 (“the Act”). The mandatory cancellation decision was taken because Mr Hastibeer had been sentenced to a lengthy term of imprisonment for serious offences and was required to serve part of that term in jail on a full-time basis.  He faces deportation to his country of birth, South Africa.

   [1] A Class BO Subclass 115 Remaining Relative (Permanent) visa.

2. Hearing the matter afresh on the evidence before me, I must decide whether the delegate’s decision should be affirmed or set aside. The matter is to be heard and determined de novo on the merits.  At the hearing, Ms Mamarot appeared for Mr Hastibeer; Mr Cleary, for the Respondent.

   STATEMENT OF CONCLUSION

3. I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Hastibeer’s visa be revoked. I set out the background facts and the reasons for this conclusion.

   BACKGROUND FACTS

4. The salient background facts are as follows. Mr Hastibeer was born in January 1998 and came to Australia from South Africa as a young boy, aged about four, with his mother. His parents had earlier separated after an unhappy marriage. As a baby, Mr Hastibeer was apparently subjected to some physical abuse (consisting of, amongst other things, scalding) at the hands of his father, but I am not persuaded that the abuse has had any lasting impact upon him.  Mr Hastibeer’s school days were troubled and he did not perform well. Between 2013 and 2016, he had hip surgery three times and an operation on his arm.  For some months, he was confined to a wheel chair and had a further six months on crutches.[2]  His relationship with his mother, who gave evidence at the hearing, was difficult. He believed his mother favoured his older brothers, who were better behaved.[3]  Eventually, Mr Hastibeer left high school and gained some limited work experience, but there were periods of unemployment, particularly at the time he underwent surgery. 

   [2] Ex R1 at 168.

   [3] Ibid, at 180.

5. I now turn to Mr Hastibeer’s criminal convictions.[4] In 2016, Mr Hastibeer was convicted of entering enclosed land without a lawful excuse.  He was fined $100 on that occasion.  This offence is of marginal significance in my opinion.  On 14 December 2017, Mr Hastibeer was convicted on two counts of robbery while armed with a dangerous weapon. The first offence occurred in December 2016, when Mr Hastibeer was eighteen years of age.  Mr Hastibeer and a friend had decided to rob a Subway outlet. Mr Hastibeer was armed with a replica pistol. The pistol was not dangerous in the sense that it could not be loaded and fired, but it fooled the robbery victims.  Two young female employees, of whom one was a minor, were made to crouch under the counter while the robbery took place.

   [4] Ibid, at 24.

6. Mr Hastibeer told a psychologist who was preparing a pre-sentence report that he had committed the crime because he wanted “to do something fun” while on drugs.[5]  Mr Hastibeer denied making this statement in his evidence to me, but I accept that he said this to the psychologist.  

   [5] Ibid, at 185.

7. Having robbed Subway and terrorised its employees, Mr Hastibeer decided some three weeks later to commit the same type of crime with the same friend.  This time the target was an Indian restaurant. Mr Hastibeer entered through the back and held the replica pistol up and in the direction of one of two men standing in the room. He was only a short distance away from that man. Mr Hastibeer gave evidence that he committed the crime so he could purchase drugs and alcohol for a party that he wished to attend later that evening.

8. It is of significance in my opinion that Mr Hastibeer committed two crimes in sequence and only separated by a period of weeks. The terror that Mr Hastibeer had imposed on the staff of the Subway outlet would have been fresh in his mind when he decided just three weeks later to rob the Indian restaurant. I note that it is clear from Mr Hastibeer’s evidence that he had been abusing alcohol and the drugs “ice” and marijuana for some time before the offences.

9. It would appear that Mr Hastibeer initially denied responsibility when he was arrested shortly after the second robbery, but he said in evidence that he confessed his offending frankly when he was shown CCTV footage in which he was clearly identifiable. The District Court of New South Wales sentenced Mr Hastibeer to two concurrent terms of imprisonment which amounted to a total term of imprisonment of three years and ten months with a non-parole period of two years and six months.

10. I note that Mr Hastibeer was granted paroled at the earliest opportunity, namely, 8 July 2019. He was taken immediately into immigration detention as his visa had been appropriately cancelled under section 501(3A) of the Act.

    RE-EXERCISING THE DISCRETION

11. The parties agreed that the mandatory cancellation of Mr Hastibeer’s visa was appropriate under the Act. No issue arises before me in respect of that.  The Minister, having notified Mr Hastibeer of the decision to cancel his visa mandatorily, received submissions requesting that the cancellation decision be revoked. In deciding whether or not to revoke the cancellation decision, the Minister’s delegate was required to apply Direction 79, issued under section 499 of the Act. I am also obliged to apply the Direction as part of my review.

12. I recently considered the Direction in Ung v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AAT 112. I repeat paragraphs [26] to [32] of that decision as follows:

    “[26] I now turn to the re-exercise of the discretion in accordance with Direction 79.  The Direction is divided into parts. Paragraph 6 contains a preamble which sets out the “objectives” of the direction, “general guidance”, and “principles”.

    [27] Paragraph 6.1(1) notes that the objective of the Act is to regulate in the national interest the presence in Australia of non-citizens. The purpose of the direction is to guide decision-makers performing functions including the revocation of a mandatory cancellation order. It is further noted that where the discretion in question involves the revocation of a mandatory visa cancellation, the decision-maker must consider the specific circumstances of the case. 

    [28] I would emphasise that the specific circumstances of an individual case must be addressed and weighed up.  This is, of course, consistent with the rules governing the exercise of discretion under administrative law principles.

    [29] General guidance” is articulated in paragraph 6.2.  Subparagraph (1) notes that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 

    [30] The principles are set out in paragraph 6.3 and may be summarised, so far as they are relevant to this case, as follows:

    (i)Australia has a sovereign right to determine whether a person should remain in Australia. Remaining in Australia is a privilege conferred on noncitizens in the expectation that they will respect Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community;

    (ii)The Australian community expects that the Australian Government should cancel visas if a person commits serious crimes in Australia. A non-citizen who has committed a serious crime including of a violent nature should generally expect to be denied the privilege of staying in Australia;

    (iii)The criminal offending may in some circumstances be so serious that any risk of its repetition would be unacceptable;

    (iv)Australia has a low tolerance of criminal conduct by people who have been participating in, and contributing to, the Australian community for a short period of time but Australia may afford a higher level of tolerance of criminal conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age;

    (v)The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of a visa cancellation for minor children and other immediate family members in Australia are considerations that are relevant when determining whether that non-citizen’s visa should be cancelled.

    [31] Section 2 of the Direction requires me to be “informed” by the principles in paragraph 6.3 and to take into account the considerations set out in Part C in order to determine whether the mandatory cancellation of Mr Ung’s visa should be revoked. 

    [32] I note that there are so-called “primary” and “other” considerations listed in Part C. In weighing the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. I note that both primary and other considerations may weigh in favour of, or against, revoking a mandatory cancellation of a visa, but primary considerations should generally be given greater weight than other considerations. It is also recorded that one or more primary considerations may outweigh other primary considerations.”

13. I now turn to Part C. I must first consider the protection of the Australian community from criminal or other serious conduct. I must also consider the interests of minor children in Australia, and the third consideration is expectations of the Australian community.  These are all “primary” considerations.

    Protection of the Australian Community

14. I accept that the protection of the Australian community is a principle to which the Government is committed. I am required to consider the nature and seriousness of Mr Hastibeer’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious misconduct.

15. So far as the nature and seriousness of Mr Hastibeer’s conduct to date is concerned, there are potentially nine factors to which I should have regard, and these are listed in paragraphs (a) to (i) of paragraph 13.1.1(1). I now turn to consider these factors.

16. Paragraph (a) states a principle that violent and/or sexual crimes are viewed very seriously.  Under paragraph (b) crimes of a violent nature against women or children are always viewed very seriously regardless of the sentence imposed. Applying these two principles, I note that the two crimes Mr Hastibeer committed with the replica gun should be considered crimes of violence. There was no physical force used as such, but Mr Hastibeer threatened violence.  The offences involved intimidation and imposed great psychological stress on the victims.  In my opinion they are properly considered to be crimes of violence under the Direction. So far as the first offence is concerned, it involved a crime of violence against a woman and a female minor. I note that according to paragraph (d), I need not have regard to the sentence imposed in respect of this crime in determining the seriousness of the crime because crimes against women and children are always viewed very seriously; but in my opinion, the sentences imposed by the Court marked both crimes as serious.

17. I do not regard the principle in paragraph (c) as relevant.

18. I must have regard under paragraph (e) to the frequency of Mr Hastibeer’s offending and consider whether there is any trend of increasing seriousness. In this regard, I have already indicated that I have largely discounted the very first offence of wrongfully entering land.  On the other hand, Mr Hastibeer did demonstrate that within three weeks he was prepared to commit the same serious offence twice.  That is of particular concern.  

19. I must also have regard to the cumulative effect of repeated offending.  In this connection, I again note that two offences were committed within three weeks and together they are more serious than a single offence would have been.  In particular, it is of concern that Mr Hastibeer, having had the chance to reflect on the reality of his crime (that is, the psychological harm he had inflicted), nevertheless committed the same type of crime a short time later.

20. The remaining paragraphs are not of relevance in my opinion.

21. In assessing the risk to the Australian community should Mr Hastibeer commit further offences, I must have regard to, “cumulatively”, the nature of the harm to individuals or the Australian community should he engage in further criminal or other serious conduct and the likelihood of his engaging in that conduct. In this latter regard I must take into account available information and evidence.

22. If Mr Hastibeer were to commit further crimes of the type of which he was convicted, the harm to individual members of the public would be very substantial indeed. I do not leave out of account the impact on the owner of the deprivation of his or her property; but the far greater impact occurs at a personal level, that is, upon those threatened with violence. 

23. I do not underestimate the impact of robberies effected with a replica weapon. The trauma of such crimes can reasonably be expected to range from “serious” to “extreme”, depending on the psychological make-up of the victims. It may safely be predicted that some people will never recover fully from an episode where they have felt their life was about to be cut short by a bullet.  That harm must not be underestimated. The harm that Mr Hastibeer has so far shown a willingness to inflict has extended to minors.

24. So far as the likelihood of Mr Hastibeer engaging in further criminal or other serious conduct is concerned, I have had regard to two psychological assessment reports and the oral evidence given by one of the two psychologists.   First, Ms Durkin prepared a report as part of the presentence procedures.  In addition, I received a report from Dr Watson-Munro, who saw Mr Hastibeer earlier this year.  He gave evidence at the hearing. 

25. These reports are important, in my opinion. I turn now to consider them.  As I have said, Ms Durkin’s report informed the sentencing process.[6] The report was prepared before Mr Hastibeer was sentenced although at the time of the report he had been in custody on remand for some months.  Ms Durkin noted (at [21]) that Mr Hastibeer had difficulty securing and maintaining friendships, that he reported that he had misused alcohol to a large degree (at [30]), and that he had used “ecstasy” (at [32]) and “ice” (at [33]). I do not accept Mr Hastibeer’s report to her that the days of the offending were the only two occasions on which he had used ice.  He accepted in his evidence before me that he had been using the drug for some time on a regular basis when he committed the offences.

    [6] Ibid at 178ff.

26. So far as the psychological assessment itself is concerned, Ms Durkin notes that Mr Hastibeer was apparently diagnosed with ADHD (at [40]).  Mr Hastibeer advised that he had struggled with aggression since his childhood (at [42]). A “Million Clinical Multiaxial Inventory (4ed)” was administered. The result of that test was that Mr Hastibeer had exaggerated his symptom experience, but that such “a profile is often considered a ‘cry for help’ reflecting the individual’s significant psychopathology” (at [49]). Although the profile had to be reviewed with caution, it was still able to be interpreted. Ms Durkin noted (at [52]) “multiple elevations” suggesting an Antisocial Personality Disorder and Narcissistic Personality Disorder were present.

27. Another test was administered[7] and this suggested that Mr Hastibeer “has significant difficulties in inhibiting his behaviour and his emotional state and he will struggle to self- monitor and respond effectively to changes in his environment” (at [55]).

    [7] Referred to as the “Behaviour Rating Inventory of Executive Function- Adult Version Brief- A”.

28. Ms Durkin notes (at [56]) as follows:

    “Mr Hastibeer presents with a complex psychological history but based on the information available he is a young man with a long history of engaging in acting out behaviour. He displays traits of oppositional defiance disorder and conduct disorder. The symptoms of these conditions remain problematic for Mr Hastibeer and cause him significant functional impairment across multiple domains.”

29. Ms Durkin then concludes:

    “As he now transitions into his adulthood he appears to be manifesting symptoms of personality dysfunction, but his youth must be taken into consideration, as his personality is malleable at this stage. Despite the number of psychological symptoms evident in Mr Hastibeer’s case, based on information available he does not appear to meet criteria for clinical disorder and it is inappropriate for any further comment regarding personality dysfunction. However, I do not dispute that Mr Hastibeer has struggled with various psychological issues since his childhood and these have laid a foundation for his current functioning.”

30. Ms Durkin also concludes (at [59]) that “[s]ubstance abuse is the most significant and direct contributor to Mr Hastibeer’s offending in this case, but it is argued that the disinhibiting effects of drugs magnified his underlying impulsivity and propensity towards recklessness as well as his rule-breaking attitude”.

31. Mr Hastibeer is then described as follows (at [60]):

    “Mr Hastibeer is a young man who presents with a complex history but he also appears to be crossroads with regards (sic) to his trajectory in life. Positively, he has the support of his reportedly prosocial family and he has a history of engagement with various mental health and medical services that continue to offer assistance. However, he also endorses the motivation to address the factors that have elevated his risk in this case his recent experience of prison seems to have had a deterrent effect.  This all bodes well for his prognosis.”  (emphasis supplied)

32. I take this report into account and give it due weight.  I note it was prepared some two years ago while Mr Hastibeer was on remand awaiting sentencing. 

33. The Tribunal heard evidence from Mr Watson-Munro who had prepared a report.[8]  As I understood Mr Watson-Munro’s evidence, he largely agreed with Ms Durkin, but he was prepared to go further than her.  He was even more positive about Mr Hastibeer’s rehabilitation prospects.

    [8] Ex A1, pp 61ff.

1. In that connection, he referred in his evidence to Mr Hastibeer’s having had, since the time Ms Durkin’s report was prepared, the additional experiences of adult custody in jail and custody in Villawood Detention Centre. Mr Hastibeer had had two years to mature and he had also had to confront the harsh reality of imminent deportation from Australia to South Africa. Mr Watson-Munro also referred to the fact that at the time of his offending, Mr Hastibeer was affected by illicit drugs which had had a dramatic impact upon his judgment. These had only exacerbated the difficulties he faced with respect to impulse control. In this regard, his opinion largely reflected Ms Durkin’s.  At the time of his offending, Mr Hastibeer was only intermittently compliant with his ADHD medication. In his evidence to the Tribunal, Mr Watson-Munro referred to the fact that forced abstinence from drugs and alcohol does lead to detoxification, which is the first stage of recuperation from drug dependence.

2. I accept that Mr Hastibeer, having now ended his physical dependence upon alcohol and drugs as a result of his confinement, will need to ensure that he does not relapse into a psychological dependence upon drugs. This will be a question of choice for Mr Hastibeer and an ongoing challenge, but I do not doubt the deterrent effect prison and immigration detention will have had upon him, especially as he is a young first-time offender.

3. Paragraph 4 encapsulates Mr Watson-Munro’s opinion:

   “Notwithstanding the previous testing undertaken, in my view, Mr Hastibeer cannot be described as a psychopathic criminal. I say this advisedly on the basis of his maturation, his expressions of remorse and his strong desire for treatment. This suggests that his earlier issues in terms of poor conduct, stealing and oppositional defiance were a function of his immaturity, his ADHD, his non-compliance with medication and on occasions it is overarching prior drug use. This suggests notwithstanding his forensic history that with continuing treatment and supervision, as well as his positive aspirations for the future, his behaviour will continue to improve and in this regard his prognosis is positive. His forensic history is minimal when he has positive aspirations for the future. In many ways, his earlier problems appear to be a function of his youth, as well as environmental factors preferable to his family life and poor acceptance when at school. These issues can be treated. I believe that he would benefit from Cognitive Behaviour Therapy focussed upon the further development of relapse prevention strategies, social skills training for his low self-esteem, systematic desensitisation prints anxiety, as well as supportive and motivational psychotherapy. In addition, it will be necessary for him to continue his medication for his ADHD. I believe that with continuing support, supervision and structure in his life, his prognosis from a forensic perspective will continue to improve. Mr Hastibeer clearly understands the consequences of any further breaches of the law if he is permitted to remain in Australia.”

4. I largely accept that opinion. It does not conflict with Ms Durkin’s overall view, but, rather, represents a further evaluation of Mr Hastibeer that is consistent with her view.  It has the added advantage of being current. 

5. I would note, however, several caveats. First, so far as remorse is concerned, I accept that while Mr Hastibeer has expressed remorse- both psychologists note this-  I was concerned to learn at the hearing that Mr Hastibeer had written letters of apology only to the two victims of the Subway robbery and not to the two male victims in the Indian restaurant. Mr Hastibeer explained that he had decided to write only to the female victims because they were likely to be more greatly affected. In my opinion, there is at least a very clear lack of insight demonstrated by this response: the male victims would have had considerable fear for their safety.  

6. As for Mr Hastibeer’s family, I have no doubt that Mr Hastibeer’s mother will do what she can to support him to make appropriate decisions. He will need, however, very intensive one-on-one psychotherapy according to Mr Watson-Munro.  In this regard, I think I should make two observations. First, it appears that Ms Hastibeer’s mother and Mr Hastibeer himself may believe that Mr Hastibeer’s problems can be addressed adequately in a limited timeframe in group therapy, but that is clearly not the case.  Group-therapy sessions are positive first steps, but they are merely a beginning on a longer path. That is clearly the gist of Mr Watson-Munro’s evidence to the Tribunal. 

7. Secondly, I do not believe that Mr Hastibeer’s mother will be an effective “supervisor” of Mr Hastibeer.[9]  I conclude that she cannot assist him now unless he decides that he wishes to have that assistance. Ms Hastibeer’s evidence was that she was largely unaware of her son’s drug problems and was unable in any event to ensure he stayed out of trouble.  I would also note in this connection my concern that, although she was qualified in the area of drug and alcohol rehabilitation, a family member made what I consider to be a very poor decision.  She decided not to reveal to Ms Hastibeer the exact nature of the drug or alcohol dependence problem that had been revealed to her by Mr Hastibeer, even though he was only a minor at the time.  It is also the case that the extended Hastibeer family has been unsuccessful in ensuring Mr Hastibeer remains law-abiding.  That is not a criticism of any family member, but simply a statement of fact.  

   [9] Cf Ex A1 at 58.

8. That said, it is also the case that Mr Hastibeer is now an adult and no amount of “supervision” will be effective unless Mr Hastibeer cooperates and desires it. So the question in judging risk really boils down to whether Mr Hastibeer can be relied upon at this stage to stay away from alcohol and drugs, the prime drivers of his offending, and to choose to pursue appropriate long-term psychotherapy.

9. In my opinion, the answer to this question is as yet uncertain but I do give due weight to the fact that both Ms Durkin and Mr Watson-Munro believe that Mr Hastibeer will in fact respond well in the future.  In particular, I think it is important that Mr Hastibeer has now detoxified.  As I have pointed out, substance abuse was acknowledged by Ms Durkin to be “the most significant and direct contributor to Mr Hastibeer’s offending”.[10]

   [10] Ex R1 at 189, [50].

10. Mr Watson-Munro also referred in his evidence to the importance of work in providing a useful structure and incentive to stay away from crime.  In this connection, I note that a letter from Mr Silva presented to the Tribunal[11] refers to the possibility of offering Mr Hastibeer a casual labouring position. I believe, therefore, that that opportunity is open to Mr Hastibeer and will be a valuable start.

    [11] Ex A1, at 74.

11. All in all, I would conclude that the risk of Mr Hastibeer’s offending again is not nil but I would not describe it as high.

    Interests of Minor Children

12. I must have regard to the interests of minor children. The children in question are Mr Hastibeer’s nieces and nephews.  In this regard, I do not think there is any significant weight to be attached to their interests. They have either had no contact with Mr Hastibeer or only limited contact.  I do not believe their interests are greatly impacted. Moreover, the children have parents and other relatives.  In my opinion, any weight to be given to the interests of minor children is very slight.

    Expectations of the Australian Community

13. So far as the expectations of the Australian community are concerned, I need only refer to the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCFCA 185 at [75] and [104]. It is sufficient to note that I am not to evaluate the community expectations for myself. Rather, it is clear that I should accept that in this case the expectations of the community are contained in Direction 79 and are firmly against revocation of the mandatory visa cancellation decision.

14. My conclusion in respect of the primary considerations is that they weigh strongly against revocation of the decision, although I bear in mind the risk of reoffending is not high in my opinion.

    Other considerations

15. I turn now to consider the other considerations. The other considerations I should take into account are listed non-exhaustively in the Direction. Of these “the strength nature and duration of ties” and “the extent of impediments if removed” are relevant. I note that I am not required in this case to consider international non-refoulement obligations or the impact on Australian business interests or the impact on victims (and I note no evidence was led in respect of this last consideration).

    Strength, nature and duration of ties

16. I accept that Mr Hastibeer has lived in Australia since he was about four years of age and has no connection with South Africa. I accept that he has no relationship with his father and has no ties with any other family presently in South Africa. I also accept that he has a strong, if difficult, relationship with his mother and that that relationship has been mutually important; and, furthermore, it will be important to Mr Hastibeer going forward as he seeks to rebuild his life.

17. I also accept that Ms Hastibeer’s mother, who gave evidence of the hearing, has suffered some considerable mental stress at the prospect of her son being deported to South Africa after his time in jail. I note that the consequences for her as an immediate family member is a factor I should take into account: see paragraph 6.3(7). The ties between Mr Hastibeer and his mother do count strongly in Mr Hastibeer’s favour in my opinion and I also accept that it will be difficult for Ms Hastibeer to visit Mr Hastibeer in South Africa.

    Extent of Impediments if removed

18. The impediments Mr Hastibeer would face on removal are substantial. Ms Mamarot tendered a chart (which was not challenged by the Respondent) showing that unemployment in South Africa is trending at something like 27%.[12] That is a very high figure, indeed.

    [12] Ex A1 at 33.

19. Mr Hastibeer speaks English and no other language.  The unchallenged evidence of Mr Hastibeer’s mother was that some eleven languages (apart from English) are widely spoken in South Africa. I accept Mr Hastibeer is fluent in English; but nevertheless he would arrive in South Africa without any support or connections and with fluency in one language only in a multilingual society. He would face immediately a very difficult labour market. He does not have qualifications that would set him apart from other young men. In the circumstances, it is reasonable to infer that Mr Hastibeer would face very significant impediments to establishing himself in South Africa.

20. I do not accept Mr Cleary’s submission, which was not based on any evidence before the Tribunal, that there was a broad equivalence between the social and economic situation in Australia and that of South Africa. I think it would be more accurate to say, based on common knowledge, that South Africa remains, unfortunately, in an underdeveloped state with pronounced societal inequality.  The unemployment rate is in itself a very strong indicator of the serious nature of the economic problems the country faces.

    Weighing the considerations

21. I accept that, generally speaking, I must give greater weight to the primary considerations. In this case, however, I believe the “other” considerations in Mr Hastibeer’s favour are sufficiently important to warrant a conclusion that they outweigh the primary considerations, which clearly favour affirming the decision.  

22. I would particularly emphasise among these “other” factors the impediments to Mr Hastibeer establishing himself in South Africa, which is a foreign country to him. He has no skills and would face a very difficult job market in a society with poorer social infrastructure.  He would find life there very challenging indeed.  I doubt strongly that he would obtain the psychotherapy he needs on an ongoing basis to ensure his former drug dependence does not re-emerge.

23. Having said that, I do note that I am particularly concerned by the crimes Mr Hastibeer has committed. I have weighed up the fact that two crimes were committed within three weeks. That is a very serious matter. I do take into account, however, the expert opinions I have discussed above.  But I do not exclude the possibility of Mr Hastibeer reoffending, and I am very mindful of the serious consequences for victims of an armed robbery even if the robbery is effected with a replica gun that is incapable of being fired.

24. I confess that I have vacillated in my consideration of this matter; but in all the circumstances, I have finally decided that the correct and preferable decision on the evidence before me is to set aside the decision under review.

25. I would wish to make several other points. First, I do not think much weight should be given to the disciplinary incidents in which Mr Hastibeer was involved when he was in jail.  I was referred to an adverse recommendation against parole made by a parole officer, but the expert Board gave Mr Hastibeer parole as soon as he was eligible for it.  That fact is more significant in my opinion.

26. Secondly, I would note that had the crimes in question been committed with a loaded weapon, I would have affirmed the decision. If Mr Hastibeer had run the risk of an accidental discharge of his weapon in the course of the robbery (even supposing in his favour that he had no intention of using the weapon), I would not regard any future risk of repetition as one the Australian community should bear irrespective of any difficulties Mr Hastibeer would face on deportation to South Africa.

27. Thirdly, I would make the obvious point that Mr Hastibeer must consider this a first and last opportunity to avoid deportation.  Irrespective of the difficulties he would face in South Africa and irrespective of family ties, if Mr Hastibeer offends in a similar way in the future, he should expect that his visa will be cancelled, and it would be very difficult for the Tribunal to rule in his favour a second time.  That is a matter that needs to be brought to his attention explicitly.

    FORMAL DECISION

28. The decision of the Tribunal will be to set aside the decision under review and substitute a decision that the mandatory visa cancellation decision be revoked.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member

...........................[sgnd]..................................

Associate

Dated: 26 February 2020

Date(s) of hearing:

Counsel for the Applicant:

13 & 14 February 2020

Ms M Mamarot

Solicitors for the Applicant:

SouthWest Migration & Legal Services

Counsel for the Respondent:

Mr M Cleary

Solicitors for the Respondent:

Australian Government Solicitor